TMI Blog2016 (5) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2010 declaring income at ₹ 4,43,912/-. In this case, survey u/s. 133A was carried out on 20.10.2008 wherein the assessee made a voluntary disclosure of additional income of ₹ 1,25,00,000/-, but the same was not declared by the assessee in his return. Accordingly, this case was take up for scrutiny and AO issued notice u/s. 142(1)/143(2) alongwith questionnaire dated 25.10.2010 for fixing the case of the assessee for 1.11.2010. In response to the same, Authorised Representative of the assessee appeared from time to time and filed requisite information / documentary evidence. The AO summoned the assessee as to why this information was not declared in the return. The assessee in his statement has submitted that the return of income was filed on the basis of the books of accounts based on actual facts and figures. Assessee further stated that the part declaration was given to the Investigation Department under pressure. It was also stated by him that no incriminating documents were found during the course of survey and therefore, he retracted from his declaration at that time and also at the time of filing the return. The AO considered the reply filed by the assessee al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Supreme Court of India in the case CIT vs. Khader Khan Son reported in (2012) 25 taxman.com 413 (SC) and appeal filed by the Revenue was dismissed by holding that section 133A does not empower any ITO to examine any person on oath. In addition to these cases, he relied upon the following cases also:- - Pullangode Rubber Produce Co. vs. State of Kerala (1973) 91 ITR 18 (SC) - Ravinder Kumar vs. Deputy Commissioner of Income Tax (2008) 33 SOT 25 (Delhi High Court) - TDI Marketing (P) Ltd. vs. ACIT (2008) 28 SOT 215 (Delhi High Court) - Mahesh Ohri vs. ACIT (2013) 23 ITR 522 154 - CIT vs. P. Balasubramanian (2013) 33 taxmann.com 130 (Madras High Court) - ITO vs. Surrender Kumar Jain ITA No. 3871/Del/2011 - Gajjam Chinna Yellappa vs. ITO (2015) 370 ITR 671 (T AP) (HC) - CIT vs. Uttam Chand Jain (2010) 320 ITR 554 - R. Arun vs. ITO, 2016 (3) TMI 321 ITAT, Chennai. 6. On the contrary, Ld. DR relied upon the orders of the authorities below and stated that the same may be upheld and the Appeal of the assessee may be dismissed accordingly. 7. We have heard both the parties and perused the records available with us, especia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (AVINASH KUMAR SETIA) WITHDRAWAL DATED 16.12.2010 OF DECLARATION DATED 18.12.2008 AVINASH KUMAR SETIA C-142, G.F. , Sarvodaya Enclave, NEW DELHI - 110 017. To ASSISSTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-17 NEW DELHI. SIR, RE:- IN THE MATTER OF SH A VINASH KUMAR SETIA WITHDRA WAL OF SURRENDER DECLARATION MADE DURING SURVEY OPERATION CONDUCTED U/S 133A OF THE INCOME TAX ACT 1961 ===================================== This is to inform you that during survey operation conducted u/s 133A of the Income Tax Act 1961, declaration was made vide letter dated 18/12/2008 making an surrender of ₹ 1.25 crore in my Individual case as well as any other associate concern in which ihad Interest. That the said declaration was made u/s 133(A) of the Income Tax Act ~1961. In this connection it is submitted that letter for declaration was given to Investigation Department under the pressure of Income Tax Authorities and to include additional estimated income in the return on the basis seized documents. This letter was filed to remove the pressure of the Income Tax Authorities and it does not represent true and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould ~ upon the evidences/ material gathered during the course of search/ survey operations or thereafter while framing the relevant assessment orders. Yours faithfully, Sd/- S.RMahapatra) Under Secretary(Inv 11) Further as informed earlier, that there was no incriminating documents seized/found during the course of suggesting the undisclosed income of ₹ 1.25 crore and also no such incriminating documents has been pointed out by your goodself in the questionnaire issued by you to suggest that there was undisclosed income earned by the assesse during the captioned assessment year. It is submitted that as per instruction of CBDT on the captioned subject and also based on the various judgements, it is a well established precedence that in the absence of any evidence, no addition is required to be made for any adhoc declaration made by the assesse. And for this proposition of law we rely on the judgement :- b) Paul Mathew Sons Vs CrT 263 ITR 10 I (KER) c) Sanjeev Kumar Pandhi Vs CIT 305 ITR 101(P H) d) Abhi Developers Vs ITa. 12 SOT 444 (Ahm) In view of the above facts as informed earlier , no incriminating documents seized/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 has dealt the similar issue and decided the same in favour of the assessee in the case of M/s IIBS Infonet (P) Ltd. vs. ACIT reported in 2016 (4) TMI 346 ITAT, Delhi, (in which the Judicial Member is the Author of the order). For the sake of convenience, we are reproducing the relevant para no. 8 9 of the order dated 8.3.2016 (Supra) as under:- 8. We have heard both the parties and perused the records, especially the orders of the revenue authorities, statement recorded u/s. 133A of the Act and the case laws cited by the Ld. Counsel of the assessee, as aforesaid as well as the CBDT s Circular dated 10.3.2003. We find that in the present case an addition of ₹ 70 lacs was made by the AO on the basis of statement of Mr. Ajay Singhal at the time of survey recorded u/s. 133A of the I.T. Act. We find considerable cogency in the Ld. Counsel of the assessee s submissions that addition cannot be made on the basis of the statement recorded during the survey under section 133A of the Act, in view of the various judicial decisions wherein, it has been held that such statement does not have any evidentiary value, especially the decision of the Hon ble Madras High Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... survey operations no attempt should be made to obtain confession as to the undisclosed income. Any action on the contrary shall be viewed adversely. Further, in respect of pending assessment proceedings also, assessing officers should rely upon the evidences/materials gathered during the course of search/survey operations or thereafter while framing the relevant assessment orders Yours faithfully, Sd/- (S. R. Mahapatra] Under Secretary (Inv. II) 9. In the background of the aforesaid discussions and respectfully following the precedents of the Hon ble High Courts, as aforesaid and in view of the CBDT s Letter dated 10.3.2003, as aforesaid, we are of the considered opinion that the addition made on the basis of the statement in the present case recorded u/s. 133A is not sustainable in the eyes of law, hence, we delete the addition of ₹ 70 lacs made by the AO and confirmed by the Ld. CIT(A) and allow the Appeal of the Assessee accordingly. 7.2 We also find that the decision of the Hon ble Madras High Court in the case of CIT vs. Khader Khan Sons (2008) 300 ITR 157 has been confirmed by the Hon ble Supreme Court and the Appeal of the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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